Proportionality Principle And Counter Terrorism Essay

Question:

Discuss about the Proportionality Principle and Counter Terrorism.

Answer:

Introduction

Proportionality, as a general principle of law, is needed for effective enforcement of form of actions and legislative guidelines. Proportionality has been essentially been inculcated as a measure to protect individual rights and minimize administrative burdens. Proportionality helps to bridge the gap between central and regional governments and allows them to lay down respective rules and guidelines with seamless ease and flexibility. To protect federal values and benefits mechanism of proportionality should be incorporated into Australian constitutional methodology. Proportionality is used in exercising constitutional rights jurisprudence and characterization of purposive powers. To determine whether express or implied constitutional guarantee is permissible or not proportionality should be used. In addition, it is also an integral means to decide whether a Commonwealth Act can be characterized as having a sufficient to the power to be valid. One of the major attractions of the mechanism of proportionality is its consistency in application, allowing power balances between central and regional governments to naturally shift whilst maintaining the overall structure. The principle of proportionality requires a transparent test to be developed and remove the veil of legalism.

In Leask v Commonwealth (1996) 187 CLR 579,616, Toohey J stated that extending proportionality to become a ‘general touchstone of constitutional power’ would result in the Court being ‘drawn inexorably into areas of policy and of value judgements ’. Despite this, the concept of proportionality is important as it gives the court a discretion that is inappropriate for judicial exercise. For example, Stone is critical of the inconsistency and error that it asserts is latent in ad hoc balancing often associated with the use of proportionality.

Flexibility is one of the major advantages of the mechanism of proportionality. Proportionality also helps address several federal issues. For instance, the notion of protecting an individual's right to be governed by the appropriate level entity within the federation(i.e. at local, State or federal level). Using federal values within a balancing exercise allows the federation envisaged by the Constitution to be adaptable as society and its government develops and adapt to contemporary circumstances.

The principle of Proportionality is necessary only when there are competing factors which balance against each other. Proportionality involves relationships between matters. There must always be a counterbalancing interest or right against the legitimate government objective for proportionality.

The concept of proportionality has become an underlying constitutional principle which limits both the administrative and legislative powers. The test for the principle of proportionality can be sub divided into three sub-principles. Firstly, proportionality determines the suitability of a measure for the attainment of any particular objective. Secondly proportionality is essentially used to determine the necessity of an adopted which implies that a measure is permissible only if no less restrictive method is available for the achievement of the legitimate end pursued. Thirdly the concept of proportionality helps to assess the seriousness of the intervention and the reasons justifying it must be proportionate to each other.

The concept of proportionality can also be associated with the nature of the balancing exercise, the possible form a proportionality test may be of assistance in the determination of the appropriate standard while enforcing a rule or reform. The concept of Proportionality also helps to lay down guidelines and parameters for subsidiary matters.

Proportionality essentially works on the following principles. Firstly, it aims to minimize any financial or administrative burdens on communities, local authorities, citizens and other related economic operators.

Secondly, it aims to simplify the form of action. It implies that proportionality mechanism entails the simplest, most feasible, consistent and satisfactory achievement of the objectives and measures.

In addition to the constitutional arena, the courts have used the concept of proportionality to determine whether delegated legislation is suitable in empowering legislative provisions and parameters.

Proportionality is also associated with the concept of consistency. It plays an integral role in ascertaining whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of any enabling purpose or not. Proportionality mechanism can also be effectively applied in areas of delegated legislation and in areas where constitutional characterization is flawed.

Conclusion

Indeed, the mechanism of proportionality should have a major role to play in matters pertaining to characterization. This is mainly because the adoption of the general principle of test of proportionality would enable a significant, almost revolutionary, shift in jurisprudence for the High Court. The very concept of proportionality would provide for a broader adoption of principles through an implied right - a test which would require proportionality to governmental objectives to safeguard the citizens' right to be governed by both Commonwealth and State units in a constitutional federation. This argument is based upon a premise that there are meaningful advantages to maintaining a federation.

Owing to its advantages, Proportionality has been a surely been a cornerstone of human rights. In addition, the European, Canadian and United States discourse demonstrates that proportionality can be used as an additional tool in determining constitutionality of legislation and ensure that the basic structures and advantages of a federal system are maintained. Proportionality in characterization beyond its current, limited use serves as an integral part with respect to the purposive powers and the incidental power. These include what 'rights' it would be employed to protect and the content of such rights. Apart from these advantages, the benefits of the inculcating the concept of proportionality are manifold. These entail the following. Firstly, broader use of the mechanism of proportionality would help to remove the arbitrary application of it in some instances and circumstances which has caused substantial disagreement amongst the High Court. Secondly, the concept of proportionality would also provide major assistance in the matters pertaining to the maintenance of Australia's federal structure which, after recent decisions of the Court has taken a considerable tilt towards the centre. Finally, proportionality serves to protect several federal benefits and values.

References

13 Principles Week Of Action: Fighting Surveillance Law In Australia (2017) Electronic Frontier Foundation

Australia’s Growing Debt To The European Court Of Human Rights* (2017) hcourt.gov.au

An Australian Looks At German 'Proportionality (2017) An Australian Looks At German 'Proportionality

Global Influences On The Australian Judiciary (2017) Hcourt.gov.au

Michaelsen, Christopher, The Proportionality Principle, Counter-Terrorism Laws And Human Rights: A German-Australian Comparison (2017) Papers.ssrn.com

Proportionality And The Constitution | Prof Anne Twomey | ALRC (2017) Alrc.gov.au

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